Maddox v. Yates, et al.

Filing 14

ORDER DENYING 13 Motion to Appoint Counsel signed by Magistrate Judge Barbara A. McAuliffe on 9/17/2013. (Jessen, A)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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DAVID MADDOX,

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1:13-cv-00171-BAM (PC)

Plaintiff,
ORDER DENYING REQUEST FOR
APPOINTMENT OF COUNSEL

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vs.

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JAMES A. YATES, et al.,

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Defendants.

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________________________________/

(ECF No. 13)

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On September 13, 2013, plaintiff filed a motion seeking the appointment of counsel.

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Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v.

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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to

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represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court

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for the Southern District of Iowa, 490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in

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certain exceptional circumstances the court may request the voluntary assistance of counsel

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pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525.

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Without a reasonable method of securing and compensating counsel, the court will seek

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volunteer counsel only in the most serious and exceptional cases. In determining whether

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“exceptional circumstances exist, the district court must evaluate both the likelihood of success

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of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the

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complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted).
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Plaintiff asserts that he requires counsel because he is a participant in mental health

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services and he needed counsel to help him understand the forms and papers in an appeal to the

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Ninth Circuit. The court does not find the required exceptional circumstances in this case. Even

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if it is assumed that plaintiff is not well versed in the law and that he has made serious allegations

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which, if proved, would entitle him to relief, his case is not exceptional. This court is faced with

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similar cases almost daily. Plaintiff’s receipt of mental health services and the appointment of

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counsel in an appellate matter also do not establish exceptional circumstances in this action. At

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this early stage in the proceedings, the court cannot make a determination that plaintiff is likely

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to succeed on the merits, and based on a review of the record in this case, the court does not find

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that plaintiff is cannot adequately articulate his claims. Id.

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For the foregoing reasons, plaintiff’s motion for the appointment of counsel is HEREBY

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DENIED without prejudice.

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IT IS SO ORDERED.

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Dated:
10c20k

September 17, 2013

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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